1. This suit was brought by the Maharajah of Jeypore to obtain an order for separate registry in his name of certain portions of the Pachipenta Zemindari which were sold in Court auction upon the suit of the Maharajah of Bobbili against the Pachipenta Zemindar in Original Suit No. 1 of 1903 and purchased by him. The Vizagapatam District Court which passed the decree transmitted the decree for execution to the Court of the Government Agent of Vizagapatam and that Court held a sale of the right to collect Kattubadi from Mokhasadars whose Mokhasas were situated not only in the Agency tracts but also outside those tracts in the ordinary plain villages.
2. Issue No. 16 raises the question whether the Agent's Court had any jurisdiction to sell the ordinary villages of Pachipenta Zamindari and whether the plaintiff acquired any rights by such sale.? The Subordinate Judge has now found this question against the plaintiff who preferred this appeal against the decree dismissing his suit.
3. The order transmitting the decree for execution to the Agent's Court has not been produced. It is suggested that we should presume that the decree was transmitted under Section 39(d) of the Civil Procedure Code. That provides for a Court which has passed a decree sending it, upon the application of the decree-bolder, for execution to another Court, if it considers for any reason, to be recorded in writing, that the decree should be executed by such other Court. It might fairly be presumed that, when the decree was transmitted to the Agent's, Court for execution if nothing more was said, it was intended that it should be executed against those properties over which the Agent's Court had jurisdiction. It would not be reasonable to presume that the Court which passed the decree intended the unusual course to be taken of the decree being executed against properties situated within the jurisdiction of the transmitting Court; for as regards such properties the natural course would be that the Court which passed the decree should execute its own decree. Assuming that the District Court bad jurisdiction, under Section 39, to transfer the decree to another Court to which the Civil Procedure Code does not apply, the only provisions under which the Agency Court could execute that decree are those contained in the Rules and Orders for the Administration of Justice in the Agency Courts; and Rule 26(4) of them provides that 'when it is sought to execute within the Agency tracts a decree-passed by a Court in British India situated beyond the Agent's jurisdiction, the Court issuing the decree shall forward the decree and a copy of the judgment in the suit to the Agent, who shall cause the decree to be executed in the manner provided by these rules for the execution of the decrees of his own Court.' Decrees of the Agent's own Court are executed under Rule 26(2) which contains no machinery for the execution of decree by sale of landed property situated outside his jurisdiction. There is no evidence and no reason for presuming that the District Court consciously sent its decree under Section 39(d) for execution against property within its own jurisdiction. In Prem Chand Dey v. Mokhoda Debi 17 C. 699 : 8 Ind. Dec. 1008, it was held that a Court had no jurisdiction in execution of a decree to sell property over which it had no territorial jurisdiction at the time it passed the order of sale. This is an authority for the principle that a Court which sells immoveable property must have territorial jurisdiction over such property. A similar principle underlies the Full Bench decision in Seeni Nadan v. Muthuswamy Pillai 53 Ind. Cas. 213 : 42 M. 821 : 37 M.L.J. 284 : 26 M.L.T. 223 : (1919) M.W.N. 640 : 11 L.W. 63. In Setrucherla Ramabhadra Raju Bahadur v. Maharaja of Jeypore 51 Ind. Cas. 185 : 42 M. 813 : 17 A.L.J. 694 : 37 M.L.J. 11 : (1919) M.W.N. 502 : 26 M.L.T. 127 : 21 Bom. L.R. 914 : 30 Cri.L.J. 209 : 23 C.W.N. 1033 : 10 L.W. 362 : 46 I.A. 151., the Privy Council held that the territorial jurisdiction conferred on Courts by Section 17 of the Civil Procedure Code would not include the jurisdiction of Courts which are not subject to the Civil Procedure Code and that a Court in a non-scheduled District in which a suit to enforce a mortgage was instituted would have no power to order a sale of mortgaged property within the scheduled districts.
4. It is clear, for these reasons, that the Agent to the Governor bad no jurisdiction to sell the right to collect Kattubadi in Mokhasa villages situated beyond his territorial jurisdiction and that there is no proof or presumption that the Court which passed the decree intended to confer such authority on the Agent even if it had. the power to do so.
5. A special plea has been put forward in plaintiff's favour on the strength of some observations of the Calcutta High Court in Paresh Nath Mullick v. Hart Charan Dey 10 Ind. Cas. 361 : 38 C. 622 : 15 C.W.N. 875 : 14 Cri.L.J. 300, as to the duty of Courts to protect bona fide purchasers at Court-auctions. No doubt, Courts will, as far as possible, protect innocent purchasers from the consequences of irregularities and. defects of procedure at such sales for the reason that such strangers are entitled to presume that the proceedings of Courts are regular; but such help cannot be extended to the overlooking of patent want of in herent jurisdiction on the part of the Executing Court.
6. The suit therefore, fails for other reasons than those set out in the lower Court's judgment, and it was rightly dismissed. It is unnecessary to discuss the other points raised in the appeal memorandum. The appeal also is dismissed with costs of the contesting respondents Nos. 14, 26, 33, 39 and 46 (one set).